Daugherty v. Daugherty

• Decision Date: 16 February 1949
• Docket Number: No. 17799.,17799.
• Citation: 119 Ind.App. 180,83 N.E.2d 485
• Parties: DAUGHERTY et al. v. DAUGHERTY et al.
• Court: Indiana Appellate Court

119 Ind.App. 180

83 N.E.2d 485

DAUGHERTY et al.

v.DAUGHERTY et al.

No. 17799.

Appellate Court of Indiana, in Banc.

Jan. 20, 1949.

Rehearing Denied Feb. 16, 1949.

See 83 N.E.2d 902.

Appeal from Whitley Circuit Court; Lowell L. Pefley, Judge.

Action by Charles W. Daugherty and others against Leroy Daugherty and others to set aside a deed. From a judgment for defendants, the plaintiff appeal.

Judgment affirmed.C. W. H. Bangs and U. S. Lesh, both of Huntington, for appellants.

Herbert B. Spencer and Kenner, Carlson & Gordon, all of Huntington, for appellees.

ROYSE, Presiding Judge.

Appellants brought this action to set aside a deed to an 80-acre farm from Thomas B. Daugherty to the appellees Leroy and Thelma R. Daugherty. This is the third appeal in this case. (The pleadings and facts are set out in our former opinions.) In the first appeal, Daugherty et al. v. Daugherty et al., 1945, 115 Ind.App. 253, 57 N.E.2d 599, we reversed the judgment of the trial court setting aside the questioned deed on the grounds the evidence was not sufficient to sustain the finding of the trial court that the deed was executed under such circumstances as subjected it to avoidance. The cause was retried in the Whitley Circuit Court. In that case the trial court sustained appellants' motion for a jury trial as to the issues tendered by the fourth paragraph of complaint. The trial court subsequently overruled appellants' supplemental motion requesting a jury trial on the issues presented by the first, second and third paragraphs of the complaint. It then directed the issues presented by the fourth paragraph be tried subsequent to the trial of the questions arising on the first three paragraphs of the complaint. In that case, on proper request the trial court made a special finding of facts and stated its conclusions of law in favor of appellees herein. Judgment accordingly. Appellants appealed that judgment to this court. While that appeal was pending the issues presented by the fourth paragraph of complaint were submitted to trial by jury. At the conclusion of all the evidence the trial court directed the jury to return a verdict in favor of appellees. From the judgment in that case this appeal is prosecuted.

It is a well-established rule that an appeal from the judgment of the trial court does not have the effect of vacating the judgment of the trial court. Such judgment is in full force and effect until it is reversed, and is binding on the parties as to every question decided. Where a supersedeas bond is filed the enforcement of the judgment is stayed. Nill and Another v. Comparet, 1861, 16 Ind. 107, 79 Am.Dec. 411;Waring et al. v. Fletcher et al., 1899, 152 Ind. 620, 632, 52 N.E. 203;Salem-Bedford Stone Company et al. v. Hobbs, Administrator, 1902, 28 Ind.App. 520, 522, 63 N.E. 314;Dinwiddie et al., Executors, v. Shipman et al., Administrators, 1915, 183 Ind. 82, 86, 108 N.E 228;McConnell, Administratrix v. Thompson, Trustee, 1937, 213 Ind. 16, 31, 8 N.E.2d 986,11 N.E.2d 183, 113 A.L.R. 1429.

An examination of the record in this case discloses that substantially the same evidence was introduced in evidence as was introduced on the former trials of this cause. There is no evidence in the record to show appellants have or had any interest in the property involved in this litigation except on the grounds the grantor was of unsound...